dissenting.
I respectfully dissent from the conclusion reached in the principal opinion reversing the judgment and ordering refund of the taxes and interest paid under protest.
*788The principal opinion reverses the judgment of the circuit court which upheld the determination of the Department of Revenue and orders a refund of taxes paid under protest on the grounds that the Kirkwood and St. Louis County sales tax ordinances were not placed in evidence in the administrative hearing.
I agree that the ordinances mentioned were not formally placed in evidence in the hearing before an official of the Department of Revenue. In my opinion, the failure to place those ordinances in evidence is not an appropriate basis for outright reversal of the circuit court judgment upholding the assessment because the existence of the Kirkwood ordinance and the St. Louis County ordinance was not questioned by the taxpayer and the terms of those ordinances are specifically mandated by laws of the state of Missouri. See § 94.510, et seq., RSMO 1969, and § 94.605, et seq., RSMo Supp.1973.
The sequence of events leading up to the taxpayer’s petition for reassessment has been set forth in the principal opinion. The petition for reassessment filed by the taxpayer appears in the taxpayer’s brief. The petition for reassessment nowhere questions the existence of a Kirkwood city sales tax ordinance nor a St. Louis County transportation sales tax ordinance. Section 144.240, RSMo 1969, the statute in effect at the time these transactions took place, requires that “[e]ach such petition [petition for reassessment] filed with the director of revenue shall set forth specifically and in detail the grounds upon which it is claimed the assessment is erroneous.” (Emphasis supplied.)
The taxpayer’s “Petition for Reassessment” 1 sets forth the specific grounds upon which the taxpayer seeks reassessment. Nowhere does the taxpayer claim that Kirkwood or St. Louis County failed to enact the applicable tax, but rather the petition proceeds on the premise that both jurisdictions have enacted a sales tax. It seems quite clear from the petition itself that the taxpayer’s petition for reassessment was directed to such questions as whether or not the sales took place in a taxable situs, whether or not Consumer *789Contact Company made the sales, and where were the places of purchase and delivery. Indeed, paragraph number 4 of taxpayer’s petition for reassessment affirmatively alleges that “Section 1 of ordinance number 5396 of the City of Kirkwood taxes sales made within the City of Kirkwood and the items in question were not sold within the City of Kirkwood.” Additionally, paragraphs 5 and 6 of the petition for reassessment affirmatively alleged the existence of a City of Kirkwood sales tax. In these circumstances, I do not agree that it was necessary in this type of proceeding to prove the existence of an ordinance where the taxpayer himself alleges the existence of that very ordinance.
The tax rate mandated by state statute must be either one-half of one percent or one percent. Section 94.605.4, RSMo Supp. 1973, and § 94.510.2, RSMo 1969. However, this is not an issue in this petition for reassessment. The terms of the ordinances are mandated by the enabling acts passed by the legislature. Section 94.600, et seq. (transportation sales tax); § 94.500 (city sales tax). Consequently, the terms of the law applicable to the transportation tax of St. Louis County and sales tax of Kirkwood are necessarily contained in the state statutes of which we can take judicial notice.
For the foregoing reasons, I dissent from the decision of this Court to reverse the judgment of the circuit court and to order a refund of taxes paid under protest.
Furthermore, I would affirm the circuit court judgment in the matter for the following reasons. The petition for reassessment set forth supra attacks the assessment made against the taxpayer on the specific allegations that the sales taxed did not take place within the taxable jurisdiction, seeks to avoid the tax because of the place or the manner in which a transaction took place, and questions whether or not the transaction was a sale. That is the entire theory upon which the petition for reassessment proceeds. The points in the petition for reassessment were addressed by the administrative agency’s findings of fact and conclusions of law, and upheld by the circuit judge.
On this appeal the taxpayer limits its contentions to a single point which is that the circuit court erred in upholding the decision of the Director of Revenue because the sales tax ordinance of the City of Kirk-wood and the St. Louis County transportation sales ordinance and certain administrative rules or regulations relied on by the City of Kirkwood or the County of St. Louis were not introduced in evidence before the administrative agency. I have addressed that question initially in this dissent and, in my opinion, it was not necessary for those ordinances to be introduced formally into evidence in this case. I would therefore overrule the appellant’s single point and consequently affirm the judgment of the circuit court.
For the foregoing reasons I dissent.
.Comes now Consumer Contact Co. and, in accordance with Section 144.240 of the Revised Statutes of Missouri, hereby petitions the Director of Revenue, Bureau of Sales Tax to reassess assessment number 10798 in the amount of $16,871.31 for the period of January 1, 1974 to December 31, 1975 for the following reasons:
1. The assessment is made on items not subject to the Kirkwood City Sales Tax nor the St. Louis County Transportation Sales Tax because (a) the merchandise was purchased outside the State of Missouri and was being stored for delivery to purchasers outside the State of Missouri; (b) the items in question were not sales by Consumer Contact Co.; (c) the items in question were purchased outside the State of Missouri for delivery to buyers outside the State of Missouri; (d) the items were purchased outside the State of Missouri for delivery to purchasers outside the City of Kirkwood and outside the County of St. Louis; (e) the items were the subject matter of a use tax which was paid and the Kirkwood ordinance and the St. Louis County Transportation Tax concerning sales tax do not cover the situation wherein use taxes are paid; (f) the items in question never obtained a taxable situs with respect to the Kirkwood City’s sales tax nor the St. Louis County Transportation Sales Tax.
2. The assessment levies interest on allegedly due sales tax for the City of Kirkwood and the City ordinance enacting said sales tax contains no provision for interest.
3. The assessment levies interest on allegedly due St. Louis County Transportation Sales Tax but contains no provision for interest.
4. Section 1 of ordinance number 5396 of the City of Kirkwood taxes sales made within the City of Kirkwood and the items in question were not sold within the City of Kirkwood.
5. That on October 27, 1971, the City of Kirkwood issued its directive to consumer Contact Co. stating that shipments made from a location outside the State of Missouri to a consumer outside the City of Kirkwood would not be subject to the City of Kirkwood sales tax and petitioner has relied on this directive, which said directive was never countermanded by the City to. petitioner. A copy of this directive is attached hereto marked Exhibit “A.”
6. On September 10, 1973, Mr. Probst of the Missouri Sales Tax Division instructed petitioner that shipments originating outside the State of Missouri being dropped-shipped to customers in Missouri but outside the City of Kirk-wood were not subject to Kirkwood sales taxes and such instructions were never countermanded by the State in a directive sent to petitioner and petitioner has relied upon said instructions.
7. That the statute of limitations prevents any collection of sales taxes prior to two years from the date the assessment was made.